PFC submission to Committee of Ministers

The Committee of Ministers meet this week (12th - 14th March 2019) to examine the implementation of judgements & decisions of the European Court of Human Rights. In advance of this meeting, PFC provided a written submission to the Committee outlining our concerns regarding the ongoing failure of the British government to fully respect & implement the Court's judgement in the McKerr group of cases relating to the actions of the security forces. It is reproduced below:

"The Pat Finucane Centre (PFC, Derry/Armagh/ Belfast, Northern Ireland) in conjunction with Justice for the Forgotten (JFF, Dublin) wish to make the following Rule 9 submission to the Committee of Ministers on its supervision of the following cases relating to security force actions in Northern Ireland:

Jordan v the United Kingdom, judgment final on 4 August 2001

Kelly and Ors v the United Kingdom, judgment final on 4 August 2001

McKerr v the United Kingdom, judgment final on 4 August 2001

Shanaghan v the United Kingdom, judgment final on 4 August 2001

McShane v the United Kingdom, judgment final on 28 August 2002

Finucane v the United Kingdom, judgment final on 1 October 2003

and

Hemsworth v UK, judgment final on 16 October 2013

McCaughey & Others v UK, judgment final on 16 October 2013

The PFC is a non-party political, anti-sectarian human rights group advocating a non-violent resolution of the conflict on the island of Ireland. We believe that all participants to the conflict have violated human rights.

The PFC assert that the failure by the British state to uphold Article 7 of the Universal Declaration of Human Rights, “all are equal before the law and are entitled without any discrimination to equal protection of the law”, is the single most important explanation for the initiation and perpetuation of violent conflict.

We provide an advocacy, advice and support service to families, bereaved/injured as a result of the conflict, who wish to engage with statutory agencies including the (now-defunct) Historical Enquiries Team (HET), the Office for the Police Ombudsman of Northern Ireland (OPONI) in Northern Ireland, and AnGarda Síochána in the Republic (through JFF).

The aim of our work is to assist families in establishing the facts surrounding the death/s of their loved one/s or physical/psychological injuries sustained. We are also engaged, on both sides of the border, in working with individual families in a project known as the Recovery of Living Memory Archive (RoLMA).

We currently provide this service to approximately 200 families across Ireland through four offices in Derry, Belfast, Armagh and Dublin (in partnership with Justice for the Forgotten). Many of these cases engage Article 2 ECHR issues.

We respectfully submit this Rule 9 submission for consideration at the meeting of the Ministers’ Deputies in March 2019.

The PFC have made previous Rule 9 communications to the Committee of Ministers (CM) on the same group of cases in relation to what are now called the “package of measures” agreed by the UK. Our most recent submission was made in October 2016. We make this submission to update the CM on developments, or more appropriately, the lack of them, regarding the UK government’s implementation of the “package of measures.”

Stormont House Agreement

The PFC welcomed the commencement of a public consultation to address the legacy of Northern Ireland’s past largely based on the proposals based in the Stormont House Agreement (December 2014). The consultation closed in October 2018 and the Northern Ireland Office (NIO) reportedly received over 15’000 responses. PFC has included our response to the consultation in Appendix One for your consideration. We broadly welcome the proposals outlined in the consultation and believe they could (generally) provide a framework for resolution for the majority of victims and survivors, regardless of community background. We note, however, that parallel investigative bodies will not be established in Great Britain or the Republic of Ireland and PFC have made submissions that all victims should have the same access to investigative processes and support regardless of where the death took place.

PFC have genuine concerns regarding the sincerity of the British government commitment to deal with the past in an open and honest way. While we welcome the inclusion of statutory duty on the British government and its agencies to provide “full information disclosure” to the HIU, we remain sceptical that the security services and Ministry of Defence will comply with this requirement.

PFC are genuinely concerned that the proposed ‘National Security’ veto would be abused by the British government and its agencies to hide evidence of criminal wrong-doing and/ or information that could cause them embarrassment. This veto power vests with the Secretary of State, and families we support have expressed alarm that information relating to the death of their loved one(s) could be withheld through ministerial discretion, on the basis ‘National Security’, a concept not defined in the Stormont House legislation or any other UK domestic law. Although there is an appeals mechanism outlined in the legislation, PFC does not believe it is adequate to protect the legitimate rights of families seeking the truth. (See section D of our submission, page 23).

PFC also have concerns that the draft legislation as it stands would not meet the British government’s procedural obligations under Article 2 of the ECHR as they do not include adequate safeguards to ensure independence. However, our response to the consultation provide recommendations of steps that could be taken to ensure this obligation is enforced including a prohibition on the recruitment of former member of the RUC, whether retired or now serving within the PSNI, to the body proposed to carry out investigations into conflict-related deaths, the Historical Investigations Unit (See section D of our submission, from page 11.)

Correspondence from the NIO suggest that the responses are generally in support of the SHA structures, but there are calls for some changes and NIO officials are working out the best way to move forward[1]. PFC are concerned that any further delay will undermine confidence of victims and survivors and could jeopardise the SHA mechanisms being established at all.

In the interim period the Police Service of Northern Ireland (PSNI) Legacy Investigations Branch (LIB), the Office of the Police Ombudsman for Northern Ireland (OPONI) and legacy inquests are the current mechanisms utilised to address the British government’s procedural obligations arising from Article. 2. PFC submit that these, even taken together, fail to fulfil this obligation.

Office of the Police Ombudsman

The PFC have, in earlier submissions, drawn attention to the inadequate funding provided to the Office of the Police Ombudsman of Northern Ireland (OPONI) which currently stands at 0.197% of the NI criminal justice budget. We remain deeply concerned that OPONI, with a caseload of over 400 cases within the History Directorate, is chronically under-resourced impeding the Office’s ability to investigate allegations of police wrong-doing within a reasonable time. This is a view shared by Mr Justice Maguire in a legal challenge brought by the family of Patrick Murphy who was murdered in 1982[2].The Murphy family lodged complaints with the Police Ombudsman about the handling of the murder investigation in 2004 and in 2009. However, in 2014 they were told that reduced staffing levels meant the Ombudsman’s investigation would not be complete until 2025.

Justice Maguire held that the Department of Justice had acted unlawfully by failing to provide a sufficient level of funding to enable the Ombudsman to carry out its statutory obligation to investigate the family’s complaint within a reasonable time. Mr Justice Maguire commented that the “…source of the problem besetting the police ombudsman’s office lies with the failure of government.[3]”

PFC believe that the underfunding of OPONI is a deliberate, political policy aimed at obstructing investigations that will uncover and evidence instances of police collusion with paramilitaries in wrong-doing and criminality (including murders) during the conflict.

PFC, in previous submissions, have highlighted instances of PSNI attempting to undermine the role and functions of the OPONI. We are deeply concerned to learn this week from the Police Ombudsman, Dr Maguire, that a PSNI computer system containing ‘significant and sensitive information’ relating to a number of murders was not made available to the OPONI[4]. Disclosure of this information was a legal requirement and we remain sceptical of reassurance from the PSNI that they will provide OPONI with unfettered access to information in the future.

PFC provide advocacy support to a number of families directly affected by this development, in particular those impacted by the OPONI’s investigation into the activities of loyalist paramilitaries in the north west of Ireland between 1988 and 1994. This includes the family of elected representative, Councillor Eddie Fullerton, who was murdered in his home in Buncrana in 1991. The report concerning Mr Fullerton’s death will now be delayed pending further investigations.

Families have expressed their continued support of the Police Ombudsman’s office but are deeply disturbed by the actions of the PSNI in dealing with legacy related issues/ investigation as outlined below.

Police Service of Northern Ireland- Legacy Investigations Branch

PFC are concerned that the PSNI are currently tasked with investigating conflict-related deaths, as they do not have the requisite independence to ensure compliance under Article 2. In 2017 the High Court determined in the Jean Smyth case that the PSNI LIB “lack the requisiteindependence required to perform an Article 2 compliant investigation in respect of(Miss Smyth’s) death.”[5] PFC submit that this is also the case in relation to other conflict-related deaths involving state actors.

PFC are also concerned regarding the actions of the Chief Constable/ PSNI regarding other legacy cases. We support a number of families who have challenged the actions/ inaction of the PSNI through the domestic courts. For example, the family of Patrick Barnard, a thirteen year old boy who was killed by a bomb planted by the ‘Glenanne Gang’ in Dungannon, 1976. The ‘Glenanne Gang’ This gang included loyalist paramilitaries and members of the security forces, including the Royal Ulster Constabulary and the Ulster Defence Regiment.

The Barnard family brought judicial review proceeding JR to compel the PSNI to put in place a mechanism to complete a promised ‘Overarching Thematic Report’ into what has commonly become known as the ‘Glenanne series’ of killings. According to the Historical Enquiries Team (HET) this involved 89 linked cases. The HET had promised this report to the families before it was disbanded in 2013. A decision was taken at senior level within the PSNI that the ‘Overarching Thematic Report’ would not be completed. In his judgement of 28 May 2017, Justice Treacy stated that “The frustration of the HET commitment communicated by the Assistant Chief Constable completely undermined the “…primary aim [of the HET] to address as far as possible, all the unresolved concerns that families have”.”

There was an initial hearing on 2 February 2015 and two days of hearings on the 7 and 8 May 2015 with Tracey J giving his judgement in favour of Mr. Barnard in May 2017. Tracey J further issued an ‘Order of Mandamus’ in November 2017. The Chief Constable appealed the judgement and there were further hearings before the Court of Appeal on the 10 and 11 April 2018. The outcome of this appeal is still pending despite assurances to the Barnard family that the judgement would be handed down before the end of June 2018. It is of note that Justice Treacy also held that the PSNI lacked the requisite independence to investigate this groups of cases in his judgement.

Since the first hearing on the 2 February 2015 until now 15 close family members connected to the ‘Glenanne Series’ of attacks have died without any resolution of their case, without state acknowledge of its role in the murders, without apology or reparations.

Inquests

In our previous submissions to the CM we referred to the plan by the Lord Chief Justice for Northern Ireland (LCJ), Declan Morgan, to reform the legacy coronial system[6]. PFC note that he LCJ’s proposals followed an “extensive process of engagement with the families, the international community and others to develop a proposed way forward to tackle the outstanding legacy inquests”. [7] These reforms have not been implemented, and the delays and difficulties facing the legacy coronial systems continue to adversely affect bereaved families waiting for inquests to begin, and also families whose inquests in to the death(s) of their loved one(s) have begun.

For example, the PFC are supporting the family of Kathleen Thompson, shot dead in her back garden in Derry in November 1971. The inquest was due to commence in October 2017 but was delayed until March 2018. After one week of hearing the inquest was adjourned again as information concerning the identities of soldiers believed to have witnessed the shooting had not been provided to the coroner or next of kin by the Ministry of Defence (MOD). The family were asked whether they wanted to conclude the inquest without exhausting all avenues to identify soldiers or ask the MOD to undertake further steps. This was a difficult choice for a family who had waited almost half a century to have a judicial examination of the circumstances concerning the death of their mother. They asked for the further steps to be taken and are once again facing delay.

The family, supported by PFC, have attended numerous frustrating preliminary hearings since the inquest was adjourned. The inquest was supposed to resume on 1 March 2019, but the family has been informed that this will not happen as the soldiers have still not been identified and the failings of the Ministry of Defence to provide any meaningful information continues to the detriment of the Thompson family. We are hopeful but not optimistic that the inquest may resume and conclude by the end of the year. This is unacceptable.

We welcome the commencement of the inquest into the eleven deaths in Ballymurphy, Belfast, in August 1971. PFC are also providing support to a number of the families directly affected, who also have had to wait too long for the inquest to begin and face similar difficulties regarding MOD cooperation to identify military witnesses.

Our submission to CM in October 2016 outlines in detail the impact of delays, and our understanding that the decision of the DUP to block funding to reform the coronial system, despite warnings from the LCJ that the current system breaches ECHR law, was unlawful and unacceptable. This view was shared by Sir Paul Girvan in the Birgit Hughes judicial review.[8] PFC submit that it is the UK government, as signatory and guarantor of the ECHR, who must provide the necessary funding to reform the coronial system now, in the absence of an Executive. Obligation arising from the ECHR falls on the state and cannot be delegated to a devolved government. PFC urges the British government to release the necessary funding to enable the reform to take place. This is also the view expressed in the Hughes judgement,

Legacy inquests under Stormont House provisions

Stormont House (December 2015) stated that “recent domestic and Europeanjudgments have demonstrated that the legacy inquest process is not providingaccess to a sufficiently effective investigation within an acceptable timeframe” and that “appropriate steps” would be taken by the Executive to improve the legacy inquest function to ensure compliance with ECHR Article 2 requirements.

PFC have concerns regarding provisions within the SHA Bill to limit the role of legacy inquests. The draft Bill states that once the HIU is up and running a coroner would be prevented from holding a legacy inquest until the HIU has completed an investigation into the death (or the HIU closes) and would only have power to proceed with the inquest if there were ‘compelling reasons;’ (See section D of our submission, page 28)

Legacy inquests form part of the package of measures arising from the Mc Kerr group of cases, and PFC submit that those inquests that have been already been granted by the Attorney General must proceed. Families have a legitimate expectation that the inquest will be heard, and it would be unfair to deny this. It is also imperative that those families who have never received an inquest should do so without delay, for example the case of murdered GAA official Sean Brown[9].

PFC submit that the proposed reforms of the coronial system as outlined by the Lord Chief Justice must be implemented expeditiously and legacy inquests should proceed until the HIU is operational and thereafter.

Independent Inquiry into the circumstances of the murder of Pat Finucane

2019 marks the thirtieth anniversary of the murder of Pat Finucane. The British Government has continued to refuse to establish an independent inquiry into Pat’s murder as promised in the Weston Park Agreement. This failure is currently the subject of an appeal at the UK Supreme Court. Judgement is pending.

Statute of limitations for former and serving members of the British Armed Forces

The CM may be aware of attempts among some members of the British government to bring forward a statute of limitations for former or serving members of the British armed forces. PFC submit that a unilateral statute would be unlawful under domestic and international law, amounting to state impunity[10]. Legal experts have also advised government that it would result in a de facto amnesty for all conflict actors[11].